Baltu & Godoy (No 3) [2025] FedCFamC2F 904 (19 June 2025)

1. The reasons for the decision of the Honourable Mr Justice Rajesh Bhadwaj in proceedings in the High Court of on 28 May 2025, to the effect that X and his passport and all travel documents be forthwith delivered to the Mother, were in evidence before the Court and had regard to.
2. Despite the Indian proceedings and the orders and reasons therein, X's passport has not been delivered to the Mother and a replacement passport is required as a matter of urgency.

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

1. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
2. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
3. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
4. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. The matter of Godoy & Baltu comes before me as a matter of urgency whilst the Court is sitting on circuit in the city of Warrnambool in the state of Victoria in the Commonwealth of Australia. The Mother seeks orders so that the consent of the Father to the cancellation of the child's existing passport and issue of another is dispensed with. After long turmoil, the child is now in the care of the Mother in the Republic of India ('India') but without the necessary Australian passport that would permit the return of the Mother and child to the Commonwealth of Australia.
2. By way of background, I refer to and repeat the reasons for judgment of 3 March 2025 in Baltu & Godoy [2025] FedCFamC2F 323. The long and the short of it is that orders were made in 2022 that the children X, born in 2014, and Y, born in 2009, live with their mother, the applicant in these proceedings, Ms Godoy ('the Mother'), and spend time with the father, the respondent in these proceedings, Mr Baltu ('the Father').
3. Documents that I have taken into account this day include the documents set out in Appendix A to these reasons.
4. The matter was listed and came on for hearing at 2.15 this day, or soon thereafter, at Warrnambool, by electronic communication, with the Mother and the Father being in the Republic of India, and with the Mother's solicitor, who appeared on her behalf, being in Melbourne. I was unable to see any impediment to accepting submissions from either of the parties, notwithstanding that they were situated in the Republic of India.

1. The long and the short of it is that in early 2025, for the second time in a short period, the father of X and Y requested an order of the Court that permitted him to remove the children from the Commonwealth of Australia for the purpose of a holiday, or journey, over some weeks to the Republic of India. That order was consented to by the Mother and orders were made on 7 January 2025 allowing the Father to travel to the Republic of India with the children. However, the Mother's anxiety about whether or not the Father would return the children can be readily understood from the orders that were made, and in particular, the following:
   1. That the Father be permitted to travel to India with the children, [Y] ('[Y]') born [in] 2009 and [X] ('[X]') born [in] 2014 during the school holidays from 8 January 2005 to 2 February 2025.

...

1. The Father must provide the Mother with a detailed travel itinerary and contact details for the children while the children are overseas.

...

1. 5 days prior to travel, the Applicant Father pay $100,000 (Security Amount) in the Joshi Lawyers Trust Account.
2. In the event the Applicant Father fails to return to Australia with the Children in accordance with these orders, the Security Amount be released to the Respondent Mother.

1. The security payment was lodged, the Mother made the children available to the Father, and they travelled to the Republic of India. Thereafter, some few days after both children were meant to be returned, the Father returned the child, Y, but not the child, X.

1. The Mother then brought on an application for a recovery order, and that recovery order was made. In addition to the standard form of the recovery order, I made an order requesting the police authorities of and in the Republic of India, the courts of and in the Republic of India, and the child welfare authorities of and in the Republic of India, lend their assistance (if any of them could assist consistently with the law of the Republic of India) with the enforcement of this recovery order and the reunification of the Mother with the children pursuant to the orders made in this Court on 14 November 2022 and 3 March 2025. Those orders of 3 March 2025 were as follows:

1. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(a) to find and recover the child [X], born [in] 2014 ("[X]") and to deliver the said child to the Applicant Mother forthwith, she being a person entitled to have the said child live with her pursuant to orders made in the Federal Circuit and Family Court of Australia on 14 November 2022; and > > (b) to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child/ren may be found.

1. A copy of this order be emailed and faxed immediately to the AFP Operations Coordination Centre and the Department of Foreign Affairs and Trade ("DFAT") by the Melbourne Registry of the Federal Circuit and Family Court of Australia. 2. The Respondent Father be required to provide, within 3 days, the current address at which [X] is staying in India via email to the Applicant Mother's solicitors, directed to eb@barbayannislaw.com.au. 3. IT IS RESPECTFULLY REQUESTED that the Police authorities of and in the Republic of India, the Courts of and in the Republic of India and the Child Welfare authorities of and in the Republic of India lend their assistance, if they or any of them can assist consistently with the law of the Republic of India, with the enforcement of this recovery order (Order 1 herein), and the reunification of the Mother with the children pursuant to the orders made in this Court on 14 November 2022 and 3 March 2025. 4. The Applicant Mother be permitted to, and is directed to provide this application and supporting documents filed herein, and any Court Orders made in this proceeding or in prior proceedings, to DFAT and/or any Indian authority for the purposes of locating the child, [X], born [in] 2014, in India, and to request the assistance of any court, authority or police force in and/or the Commonwealth of Australia to enforce these orders. 5. That [MR BALTU] ("the Respondent Father") and his servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the female child [Y] born [in] 2009 ("[Y]") and the male child [X] born [in] 2014 from the Commonwealth of Australia. 6. That [Y] and [X] be and are hereby restrained from leaving the Commonwealth of Australia until further Order. 7. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist until each of the children reach the age of 18 years. 8. Until further order, the children live with the Applicant Mother and the operation of the following orders insofar as they relate to the children's spend time with the Father be suspended:

(a) Paragraph 4 of the Final Parenting Orders dated 14 November 2022; and

AND UNTIL FURTHER ORDER & EX PARTE

...

1. Until further order the Respondent Father be and is restrained by injunction from disposing of, encumbering or otherwise dealing with the property at [D Street, Suburb E] ('the property').

2. Until further order the Respondent Father do all acts and things to execute a charge of all of his right, title and interest in the property known as Certificate of Title [...], Folio [...] to permit the Applicant Wife Mother to lodge a caveat over the title of [...] pursuant to the Transfer of Land Act 1958.

3. The Applicant Wife Mother be authorised to immediately lodge a caveat over the property pursuant to the obligation to execute a charge of the property at [D Street, Suburb E].

...

1. There be liberty to apply on short notice to the Chambers of Judge O'Shannessy regarding any further issues arising from these orders.

...

(emphasis added)

1. It is clear enough from the, with respect, lucid and elegant reasons of the Honourable Mr Justice Rajesh Bhardwaj[1] that, in the case in India, brought initially by the Mother's father (being authorised by email to commence proceedings on her behalf) and then by the Mother as well after she travelled to India, whereby his Honour heard the matter and reserved the decision after giving it apparent careful consideration on 23 May 2025 and then delivered oral reasons a mere five days later, on 28 May 2025.
2. The decision,[2] in substance, commanded that the Father hand over the child, X, along with his passport and all other travelling documents which were in the custody of the Father, to the Mother while she was acting on the orders of this court dated 14 November 2022, 7 January 2025, and 3 March 2025. The elegance and clarity of his Honour's reasons bear repetition, including the following parts:

1. The present petition has been filed by the petitioners for issuance of a writ in the nature of habeas corpus for searching the detenue, namely, [X], minor grandson of petitioner no.1 and son of petitioner no.2, who is an Australian Citizen, and has been detained by respondent nos.7 & 8, and after searching the minor detenue, set him at liberty by giving his custody to the petitioners in compliance of the orders dated 07.01.2025 and 03.03.2025 passed by the Family Court at Australia.

2. The peculiar facts, as enumerated from the record of the case, are that petitioner no.2 (mother), and respondent no.7 (father) and both their children, namely, [Y] and [X] are Australian citizens. Petitioner no.2 was married to respondent no.7 in the year 2006. Out of the said wedlock, they were blessed with two children; daughter [Y], aged about 16 years (born [in] 2009) and son [X], aged about 10 [...] years (born [in] 2014). Both the children were born in Australia. Petitioner no.2 and respondent no.7 ran in rough weather and hence, they got separated in the yea 2019 and were divorced [in] 2021. Respondent no.7, thereafter, got remarried in the year 2022. Both the parents approached Family Court at Australia and vide consensual order dated 14.11.2022, the said Court had passed a final parenting order. As per the said order, the parents agreed to equally share parental responsibility of both the children. The Family Court at Australia ordered that the children would live with their mother (petitioner no.2) and provided detailed terms and conditions while granting visiting rights to the father (respondent no.7). Thereafter, in September, 2024, the respondent-father filed a petition before the Family Court at Australia for granting him permission to take the children to India for the period from 23.09.2024 to 04.10.2024. In pursuance of the said order, both the children visited India and returned back to Australia within the specific time frame. He again filed similar petition for granting him permission to take the children to India and the Family Court at Australia granted him permission, as prayed, for taking the children to India from 08.01.2025 to 02.02.2025 vide order dated 07.01.2025, subject to the terms and conditions delineated in the minutes of the proposed consent order.

As is evident from the minutes of the consent order dated 06.01.2025, both the children were to be brought back to Australia by the respondent-father on or before 02.02.2025, however, he though sent back daughter [Y] on 01.02.2025 but son [X] was kept by him in India. Petitioner no.2-mother made her efforts by requesting the respondent-father to send her son back to Australia in terms of the order passed by the Family Court at Australia on 07.01.2025, however, the same was not adhered to and, thus, she approached the Family Court at Australia again for redressal of her grievances. Resultantly, the Family Court at Australia passed the recovery order dated 03.03.2025 for restoration of custody of the minor child [X] to the mother by sending him back to Australia...

...

As the respondent-father failed to comply with the order passed by the Family Court at Australia for return of the son of petitioner no.2-mother, namely, [X], within the stipulated time, hence, aggrieved against the inaction/non-compliance by the respondent-father, the petitioners have approached this Court by way of filing the present petition.

...

Learned counsel for the respondent-father has vehemently opposed the submissions made by learned counsel for the petitioners. He submitted that respondent no.7 is the biological father of the child and the custody of the child with the father can never be termed as illegal. He submitted that the child has grown up and he can think about his welfare. It is submitted that consent of the child is essential for decision of the case... He submitted that India is no a signatory of the Hague Convention and, thus, the order passed by an Australian Court is not enforceable in the Court in India. He submitted that the petition in the nature of habeas corpus for seeking custody of the child is not maintainable. The child is living with his father with his consent and, thus, it is submitted that the paramount consideration for decision of such like case is welfare of the child. He submitted that the child is living with the respondent-father at [City G] where he is studying well and hence, this petition is not maintainable in this Court. It is submitted that the respondent-father has filed a petition under Section 7 of the Guardian and Wards Act, 1956 before the Family Court at Hanumangarh, Rajasthan for custody of the child which is pending adjudication. Even otherwise, the child is happy with his father while living in India; he has already been admitted in the school at [City G] and welfare of the child, as submitted, is in India and, thus, the present petition deserves to be dismissed.

...

Learned State counsel[3] has filed the status report by way of affidavit of... He submitted that the respondent-father has violated the order of the Family Court at Australia dated 07.01.2025 and, thus, the present petition deserves to be allowed.

...

6. I have heard learned counsel for the parties and perused the available record with their able assistance. This Court has also interacted personally in the chamber with petitioner no.2-mother and the child [X] .

7. On hearing the arguments raised by both the sides, the precise issues arose for consideration of this Court, are as follows:-

1. Whether custody of the child [X] with the respondent-father, after expiry of the period granted by the Family Court at Australia vide consensual order dated 07.01.2025, is illegal being without any authority of law?

2. Whether the resent writ petition in the form of habeas corpus, initially filed by petitioner no.1 having authorization of petitioner no.2 and after impleadment of petitioner no.2, lateron is maintainable in the peculiar facts and circumstances of the case?

3. Whether the order passed by the Family Court at Australia is enforceable by judicial intervention in India?

4. Whether this Court is having jurisdiction to entertain the present petition?

5. Whether on consideration of welfare and best interest of the child, his custody deserves to be given to petitioner no.2-mother and she be allowed to take him to Australia?

...

10. It is evident from above that the aforesaid parenting order is amenable to any change with the consent of both the parties and in pursuance of the same, the respondent-father was allowed to travel to India with both the children on the basis of the Minute of Proposed Consent Orders, which reads as under:-

...

1. That the Father be permitted to travel to India with the children, [Y] ("[Y]") born [in] 2009 and [X] ("[X]") born [in] 2014 during the school holidays from 8 January 2025 to 2 February 2025.

...

...

12. Perusal of the order passed by the Family Court at Australia would show that the respondent-father was allowed to take the child to India for a specific period, i.e. 08.01.2025 to 02.02.2025. Once the said period is over and without any further extension by the Family Court at Australia, the custody of the child thereafter with the father is without any authority of law and, thus, the Court finds the custody, after expiry of the period which was granted by the learned Family Court at Australia is prima facie illegal with the respondent-father.

13. The issue with regard to the maintainability of a petition in the form of a writ of habeas corpus for the custody of a child to a parent has been dealt with by the Supreme Court in Yashita Sahu's case (supra) wherein it has been held the writ in the nature of habeas corpus is maintainable even if child is in custody of another parent. Relevant paragraph of the said judgment is reproduced hereasunder:-

"It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of te child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw and Ors., [1986] INSC 231; (1987) 1 SCC 42, Nithya Anand Raghavan v. State (NCT of Delhi) & Anr., (2017) 8 SCC 454 and Lahari Sakhamuri v. SobhanKodali, (2019) 7 SCC 311 among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellant - wife that the writ petition before the High Court of Rajasthan was not maintainable."

...

15. Thus, this Court draws its force from the aforesaid rulings of the Supreme Court and hence, it is held that the present petition in the form of habeas corpus for restoring custody of the minor child to the mother is maintainable as the custody of minor child [X] with the respondent-father is found to be prima facie illegal and without any authority of law.

...

19. Now I come to the question of welfare of the minor child, which is of paramount consideration for this Court. Learned counsel for the respondent-father has contended that the child was traumatized in the company of his mother and hence, his welfare is with the father. However, the daughter has been sent back to Australia by the respondent-father within the specific time period, whereas only son has been kept behind in India. The conduct of the respondent-father would itself negate the contention raised by his learned counsel, for the reason that if behaviour of the mother is not conducive to the son, then same would have to be detrimental to the daughter as well. But surprisingly, she had been sent back to the mother, whereas the son has been restrained and not allowed to go back to the mother.

20. That even if the stand of the respondent-father is taken to be true, only for the sake of the arguments, then it is also not understandable as to why he kept mum for a period of 2-½ years in Australia and not applied for a change of the parenting order on the said ground though the said remedy was available to him in Australia but he did not avail the same, which also falsifies the aforesaid stand of the respondent-father.

21. In the arguments raised by learned counsel for the respondent-father, the emphasis has been given that paramount consideration for deciding the custody of a child is his welfare. The welfare of the child cannot be solely dependent on the emotions of the child as he is not in a position to analyze the intricacies of his future life. The child was sent with the respondent-father by the Family Court at Australia to visit India for a family function and petitioner no.2-mother had consented for the same but unmindful of the wrong intention of the respondent-father in keeping the minor child restrained in India in defiance of the order of the Family Court at Australia.

22. On interaction with the child, the Court observed that the child was answering in a way as if he was tutored. However, the duty of the Court is of utmost sensitivity in the facts and circumstances of the case. The child as on date may be enjoying his stay in India, however, for his temporary/short-lived enjoyment, his future cannot be compromised and hence, this Court, on considering overall facts and circumstances of the case finds that the welfare of the child lies in his native country Australia.

...

26. Hon'ble the Supreme Court has repeatedly held in catena of judgments that in habeas corpus proceedings involving the custody of a minor, it is imperative to strike a balance between the principle of comity of nations and the paramount consideration of the welfare of the child. While international comity must be respected, the decisive factor must always be the best interest of the child and while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands, then technical objections cannot come in the way. A child, especially a child of tender years, requires the love, affection, company, protection of both parents. A child is not an inanimate object which can be tossed from one parent to the other. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding custody matters of a child.

27. In view of the totality of the circumstances, this Court is of the considered opinion that the continued custody of the minor child with the respondent-father, who is remarried and residing with his second wife, is unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child.

28. Before parting, it must be unequivocally observed that Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions. The constitutional writ jurisdiction of the Indian Courts is neither designed nor intended to be misused in this manner.

29. Accordingly, in the wake of the reasons stated above, the present writ petition is hereby allowed. The respondent-father is directed to hand over the minor child [X] along with his Passport and all other travelling documents which are in custody of the respondent-father, to petitioner no.2-mother [Ms Godoy] forthwith while acting upon the orders dated 14.11.2022, 07.01.2025 and 03.03.2025 passed by the Family Court at Australia, failing which the respondent-State is directed to restore custody of the minor child [X] (alleged detenue) alongwith Passport and all other travelling documents to [Ms Godoy], mother of the minor child, without any delay. After restoration of custody of the minor child [X] to her, petitioner no.2-[Ms Godoy], being biological mother of the child and having full legal rights for his custody as per the various orders passed by the Family Court at Australia, would be at liberty to take the child to Australia, their native country.

(emphasis in original)

1. I note that in the detailed oral submissions courteously given to me this day by the Father (who represented himself), he contended that there was error in Mr Bhardwaj J's decision of 28 May 2025. He submitted that Mr Bhardwaj J erred in drawing inference from the following, as set out in his judgment:
   1. ... Even otherwise, it has also come on record that [Mr H], grandfather of the minor child in whose company the minor child is stated to be living, is/was involved in [...] criminal cases registered at Police Station [City G].
2. Further, the Father asserted that his Honour was in error by drawing the inference from what the Father's affidavit had said, where the Father's quoted part referred to:
   1. Minor child is living at [City G] since 14.01.2025 amongst company of his grandparents and extended family of distinguished Uncles and Aunts in a complete homely atmosphere. The grandparents and the extended family members give the minor child comforts the attachment, support and enjoyable family time. ...
3. And his Honour inferred, on my reading, that it may be that the child was not living with the Father, but, rather, with grandparents and extended aunts and uncles, and he described that as:

... there would be probability that the respondent-father is not living with the minor child and residing separately with his second wife.

To my mind, that may or may not be a finding on the appropriate balance of proof on the law according to the Republic of India or according to the Commonwealth of Australia. Be that as it may, I do not discern that either of those observations were central to, or significant in, his Honour's decision. What was central to his Honour's decision were the observations as contained at paragraphs 22, 26, 28, as well as 29, recited above.

1. In concise submissions, the solicitor advocate for the Mother pointed out to the Court this day the myriad of orders of this Court that the Father has not complied with and alleges they are a breach of court orders. The substance of what the Father told me this day was that X has repeatedly, and in emotional terms, complained to the Father whilst in India of his treatment by the Mother whilst, at the same time, saying that he wished to remain in India.
2. In submissions to me, X's father described, in cogent terms, the importance of peace and tranquillity in a child's life. Hence, he said that what should happen is that X should have the opportunity for counselling in the Republic of India so that he becomes accustomed to the prospect that he will return to live with his mother. However, at the same time as asserting that he would return X to Australia in time, when appropriate in his view, he had many profound criticisms of the Mother as a person, as a spouse and as a parent. Those criticisms date back to some years before the parties separated and many years before the orders of November 2022, when, by consent, it was ordered that the children were to live with the Mother.
3. I note that those orders also provided that the parents were to have an equal shared parental responsibility. That is the legal jargon pursuant to the Family Law Act 1975 (Cth) ('the Act') to the effect that the parents were to have equal shared responsibility for decisions relating to major long-term issues. Section 4 of the Act defines "major long-term issues" as follows:

"major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long - term nature and includes (but is not limited to) issues of that nature about:

(a) the child's education (both current and future); and

(b) the child's religious and cultural upbringing; and

(c) the child's health; and

(d) the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

1. The importance of responsibility for long-term issues like health, education, religion and so on is readily apparent and does not need to be explained. However, that does not mean that those matters override the clear and unequivocal order that the child, (or children), was to live with the Mother. Those orders remain extant. They have never been appealed or challenged in any way.
2. Further, the importance to children of their circumstances being settled cannot be lost. The law of the Commonwealth of Australia as to new proceedings relating to children's welfare is as contained in section 65DAAA:

Section 65DAAA Reconsideration of final parenting orders

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

1. That legislation, coming into effect on 6 May 2024, is merely the codification of an earlier and longstanding body of precedent decisions of the appellate courts of the Commonwealth of Australia dealing with Act, that there must be a significant change in circumstances before children's welfare is revisited. That legislation and those precedent decisions stand for the proposition that litigation regarding children is, of itself, harmful to the children because of the conflict between the parents and that it is not in the children's interests, or anyone else's, for repeated reconsideration of children's living arrangements.
2. Further to that, there are the principles as set out by the High Court in regard to D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 including, importantly, the principle of finality, which was characterised by the High Court in that decision as follows:
   1. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.

...

1. The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions...

(citations omitted)

1. The point is, it is part of the judicial function of courts in the Commonwealth of Australia, and I infer, in the Republic of India, to quell disputes and to quell disputes finally, unless there is some good reason for the revisiting thereof.
2. After the Father had, in emotional terms, described what he says the child, X, has said to him about his desperate need to remain living in India, Ms Bethavas, on behalf of the mother, told me (the child now being in the Mother's care in India) that the child told her that he wanted to live with her and wanted to return to school in Australia. I make it clear that I place little weight on what either parent has told me about what the child now wishes when the child is in the care of his mother or in the care of his father. The phenomenon of a child telling their carer - and in reality, their all-powerful carer in terms of day-to-day decisions - what that carer is perceived to want to hear is a frequent event of reality. Notwithstanding that, the wishes of the child in determining final orders are always taken into account.
3. The concise observations of Mr Bhardwaj J can be adopted as readily explaining why events cannot be ruled by the transient wishes of a child. It is more usual in this country to place weight on the wishes of the child, not by placing the responsibility for the momentous decision of where a child should live on the child, but, rather, to take into account those expressed wishes as demonstrating the nature of the relationship between the Father and the child. I am satisfied that the child, all other things being equal, has a close relationship with his father. I am satisfied the child, all other things being equal, has a close relationship with his mother. It is profoundly unfortunate that by the Father's failure to return the child, as he had maintained to the Court on 7 January 2025 he would, the child has been placed in a volatile, conflictual situation between his mother, his father, child welfare authorities in India and the courts of India.
4. Having carefully looked at the helpful decision and reasons of Mr Bhardwaj J and having carefully listened to the submissions of the Mother and the extensive submissions of the Father, I am satisfied that it is in the interests of justice, as well as in the best interests of the child, that the orders be made as pressed by the Mother. I discussed some minor alteration to the form of the orders as proposed, and I further proposed to order, as an order of the Court, that the Australian passport authorities and the Minister and government department responsible for the issue of such travel documents be and is requested by this Court to proceed and act upon the orders and the Mother's request and application for a passport as a matter of urgency.
5. I also made a further order after discussion with the parties to ensure that it be clear that the Mother is at liberty to provide any necessary authority in Australia or India with any of the relevant court documents and reasons. I made that order after discussion in the context of the legislation of the Family Law Act, which prohibits the publication of anything that would identify a party to Family Court proceedings unless there is a court order.[4]
6. Hence, the orders that I will make are as pressed in substance by the Mother, with the additional order of liberty to apply, the order relating to the Mother being at liberty to provide documents to any such authority, and the request to the passport authorities of the Commonwealth of Australia to deal with the Mother's application as a matter of real urgency.

1. I will now turn to my reasons for two other decisions made along the way.

1. The Mother's solicitors had emailed my associates, which is the equivalent to a practice manager, or executive assistant or secretary, the request for the matter to come on for hearing urgently. I was satisfied that that should be so.
2. That request did not demonstrate an intention that the matter proceed ex parte, that is, without notice to and in the absence of the Father, Mr Baltu. The Mother's affidavit sets out her concerns of the Father, one way or another, organising for the child to be again removed from her care and detained in India. I accept her apprehension and anxiety are real, and rational and well-founded.
3. Before having discussed the matter with the Mother's solicitor, as is the ordinary and usual practice of this Court, the listing of the hearing was emailed to the Father yesterday evening. In any event, prior to the matter coming on for hearing at 2.15 pm this day, the Mother's solicitor had, properly and appropriately, emailed to the Father the affidavit of the Mother supporting the application and the application in a case.
4. The Mother's solicitor tells me, and I accept, that she had delayed in sending those unsealed documents to the Father in the hope that there would be sealed copies of the documents to be made available to him. The documents were not sealed, and hence, sensibly, the Mother's solicitor made the decision to provide the Father with those documents. The Court then notified the Father of that hearing and provided a link so that he could participate if he wished.
5. When the matter came on for hearing, but before the Father had been "accepted" into the electronic hearing, the Mother raised with me that she wished the matter to proceed ex parte, for the hearing to happen in the absence of the Father. She also sought for the orders relating to the passport not be communicated to the Father. In other words, that both the application and the orders should be made ex parte.
6. The orders sought did not require the Father to do anything or refrain from doing anything, but, rather, were to trigger a mechanism under the Australian Passports Act 2005 (Cth) so that the Father's consent for obtaining a passport for X would be dispensed with. Section 11 of the Australian Passports Act provides:

(1) The Minister must not issue an Australian travel document to a child unless:

(a) each person who has parental responsibility for the child consents to the child having an Australian travel document; or

(b) an order of a court of the Commonwealth, a State or a Territory permits:

(i) the child to have an Australian travel document; or

(ii) the child to travel internationally; or

(iii) the child to live or spend time with another person who is outside Australia.

1. I listened to submissions by the Mother and determined that I would not proceed ex parte, though I would proceed on very short notice to the Father, which is a matter that of itself required careful consideration.
2. I dismissed the Mother's oral application for the matter to proceed ex parte. My primary reason for doing so was that, whilst there was some possibility of the Father being able to agitate the authorities of India to interfere with the child's custody and delay or prevent the Mother's removal of the child from the Republic of India to the Commonwealth of Australia, I regarded that as being only a small prospect because of the nature and manner of Mr Bhardwaj J's decision. A perusal of those parts of his Honour's decision demonstrates a profound respect and recognition of the probity of the orders of this Court under the principles of comity between courts. In the circumstances of Mr Bhardwaj J's decision and the intervention of the relevant state of the Republic of India that did, under warrant, ascertain the whereabouts of the child, I was not satisfied that it was appropriate for the matter to proceed in the absence of the Father.
3. I will now turn to my reasons for a further matter that was raised and dismissed.

1. Whilst the matter was proceeding, or the submissions were proceeding, about the ex parte aspect of the case, the Mother's solicitor advocate adopted a suggestion of mine that perhaps there should be what is known as an "anti-suit injunction" that would restrain the Father from taking any further step or proceedings, or issuing any further proceedings, in the Republic of India. Ultimately, I have determined that it is not appropriate or necessary in the interests of justice for an anti-suit injunction to be made.
2. The primary reason why I do not make such an order preventing the Father from taking any step or making any application regarding the child, X, in the Republic of India is that that may impede his defence of any application, or being held to account for the degree or extent of his breach of, or refusal to comply, with the orders made on 28 May 2025. The Father told me, and represents, that the matter is listed again on 23 June 2025 in the Court of Punjab and Haryana. The Father's position is that he has and will make the passport available, and that the reason for the delay in making the passport available to the Mother was not of his making but, rather, was because both the child and the passport had come into the care and custody of CWC.[5]
3. It is also worthwhile noting my observations in my reasons of 3 March 2025 in regard to the question of jurisdiction and there being an issue as to whether there was a conflict between the jurisdiction of a Court in a foreign country, notwithstanding that that country was not a party to what is known as the Hague Convention. I refer to and repeat the following observations of those reasons:
   1. ... I am not prepared to proceed on the basis that there would not be a competent central authority or a competent authority to deal with the issue of where [X] should live. The Republic of India is the opposite of an obscure, unknown country. I am satisfied that I can find under section 144 of the Evidence Act 1995 (Cth) that I do not need evidence of the fact that the Republic of India is now the largest country by population on the planet and that the Republic of India has a high functioning government and legal system, and it is inconceivable that such a country would not have in place competent authorities to deal with where children live.
   2. Nonetheless, there is no statement or position that the authorities of that country are in any way in opposition to this Court, in this case, dealing with the matter. In all of the circumstances, I am satisfied that there is jurisdiction to make the orders sought by the Mother.
4. The detail and care of the reasons of Mr Bhardwaj J demonstrate with hindsight that my observations about the administration of justice in the Courts in the Republic of India were well-founded.

1. I also think it behoves me to acknowledge, from a legal procedural point of view, the relative efficiency with which the High Court of Punjab & Haryana at Chandigarh has dealt with the controversy that came before it. The matter commenced, as I understand from the reasons, in mid or late March 2025. The Mother took, or brought, that petition of habeas corpus or, rather, sought the prerogative writ of habeas corpus to attempt to give effect to and reinforce the recovery order of 3 March 2025 that I had made. Between the middle of March 2025 and 28 May 2025, the High Court of Punjab & Haryana at Chandigarh had been able to deal with the issue of complex proceedings and complex pleadings where there were ultimately eight parties, including the State by the Attorney-General for Punjab. That proceeding was dealt with, and included the child being interviewed by the relevant Judge and further submissions, and then the decision of his Honour reserved on 23 May but then delivered in oral reasons on 28 May. With respect , that expedition can only be commended.
2. Then the Father challenged the primary decision of the primary judge, Mr Bhardwaj J, by application to the appellate jurisdiction of that Court or court hierarchy. That application was promptly dealt with and, I note, dismissed. Hence, it needs to be noted and, with respect, admired that between the middle of March and the end of May, the Indian Courts had been able to deal with a writ of habeas corpus, notice to all of the parties, a hearing, the interview of the child, a reserved decision, the delivery of detailed and comprehensive oral reasons, the publishing of those reasons and an appeal from those orders within a relative short compass of time.
3. From the Mother's personal and emotional perspective and given the delay of her being reunited with her child, those proceedings would have seemed interminably slow, and particularly as the child had been wrongfully not returned to the Commonwealth of Australia on 2 February 2025. But given the requirements of procedural fairness to all parties and, I have no doubt, the demands upon the resources of the Indian Courts to deal with a multitude of matters, the efficiency and jurisprudential excellence must be noted.
4. Further, I am satisfied that it is in the interests of parties to proceedings in the Commonwealth of Australia to know that, notwithstanding the Republic of India is not a party to what is known as the Hague Convention - that is, the convention relating to central authorities in each of the convention countries to undertake proceedings to ascertain the appropriateness of returning a child to the country from which the child has been removed or prevented from returning - that by reason of the legal process known as the prerogative writ of habeas corpus, the Courts of the Republic of India will have appropriate regard to the Federal Circuit and Family Court of Australia Division 1 and Division 2 orders relating to the welfare of children.
5. It may be that the practice and efficiency of the High Court of Punjab & Haryana at Chandigarh is exceptional or remarkable in the Republic of India, but I have no evidence of that and draw no such inference. Hence, I am satisfied that it is important that those contemplating travel to the Republic of India from the Commonwealth of Australia with children the subject of Australian Court orders should know that they will not be easily permitted to retain a child in the Republic of India contrary to a regular order of the Family Law Act Courts of the Commonwealth of Australia.

1. Between oral delivery of these reasons and the settling of the transcript, the Court has been notified that the detenue , the child, X, the subject of these proceedings has returned safely to the Commonwealth of Australia with his mother.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy.

The following documents were considered at the urgent hearing of this matter on 19 June 2025:

• Exhibit A: Letter from Mother's solicitors requesting urgent hearing dated 18 June 2025;
• Exhibit B: Mother's Application in a Proceeding emailed to the Court on 18 June 2025;
• Exhibit C: Mother's Affidavit in support of Application in a Proceeding sworn 18 June 2025;
• Exhibit D: Final Judgment of the Honourable Mr Justice Rajesh Bhardwaj in the High Court of Punjab and Haryana at Chandigarh dated 28 May 2025; and
• Exhibit E: Email chain relating to the Mother's request for an urgent hearing.

[1] Joginder Singh Sekhom & Anor v State of Punjab & Ors (In the High Court of Punjab and Haryana at Chandigarh) CRWP-2949-2025 (O&M) (28 May 2025)

[3] The Attorney General for the State of Punjab was represented in the case.

[4] See s 114Q.

[5] An acronym standing for the child welfare authorities of the Republic of India and, I infer, what could reasonably be compared to the authorities known as "Child Protection" in the Commonwealth of Australia.